Citation Nr: 1328124 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-00 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The issues of entitlement to service connection for an acquired mental health disorder, to include depression and anxiety, a shoulder disability to include as secondary to a lumbar spine disability, a neck disability, to include as secondary to a lumbar spine disability, reflux disease, to include as secondary to a lumbar spine disability, and for a total disability rating based on individual unemployability due to service-connected disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Although the RO treated the Veteran's February 2007 statement as a claim to reopen the issue of entitlement to service connection for a lumbar spine disability, the Board finds that it was received within one year of the June 2006 rating decision, and construes it as a Notice of Disagreement, which continued the appeal. As such, the issue is as stated on the cover page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Remand is required for a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran contends that he is entitled to service connection for residuals of a low back injury. He reported that he injured his back in 1973 during basic training while doing bicep curls as one of eight service members lifting a telephone pole. In addition, he reported that while in service in 1974 he again hurt his back in a motor vehicle accident. He contends that he has experienced low back pain since service. Service treatment records show that the Veteran reported experiencing recurrent back pain in a June 1974 examination. In addition, a July 1974 note indicates that the Veteran was involved in a motor vehicle accident. In a November 2005 VA medical record, the Veteran reported back pain of 30 years from a back injury. Current VA treatment records demonstrate a current low back disability. Records include an October 2005 magnetic resonance imaging showing central spinal canal stenosis at L4-L5, disc protrusion, skewed to the left at L4-L5, and facet arthropathy at L4-L5 and L5-S1. In addition a February 2007 treatment note assessed degenerative disc disease of the lumbar spine, and lumbar facet joint syndrome. A November 2009 statement from a private medical practitioner indicates that the Veteran appeared to have suffered an injury/trauma to his lumbar spine some 35 to 40 years earlier, and that the Veteran reported injuring his back while lifting a telephone pole in boot camp. The medical practitioner then opined that in his professional opinion it was as likely as not that the degenerative changes the Veteran suffered from were "a direct accumulative effect of his [the Veteran's] injury in 1974." No reasoning for this opinion was provided. Given the Veteran's reports of low back pain in service, current diagnosis, and indications of back pain since service, a VA examination is warranted. In addition, ongoing VA treatment records since February 2009 should be associated with the claims folder. 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request and associate with the claims folder VA treatment records since February 2009. If such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that could not be obtained; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action VA will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his back disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the back disorders were caused or aggravated by the Veteran's military service. The examiner must specifically address the Veteran's assertions of in-service injuries, including the reports of injuring his back lifting a telephone pole, and in a motor vehicle accident. The examiner must also specifically address the reports of back pain contained in the Veteran's STRs. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).